[00:00:00] Speaker 03:
Good morning, Your Honors.

[00:00:01] Speaker 03:
May it please the Court?

[00:00:03] Speaker 03:
Obviously, there's a lot of overlap here with the legal arguments, so I hoped to just maybe put my gloss on a couple of things the panel put out.

[00:00:13] Speaker 03:
I think one of the first questions was, what would be the proper sequence?

[00:00:19] Speaker 03:
And I think the proper sequence

[00:00:23] Speaker 03:
if there is Article 3 standing at this pleading stage, which I think there is in our case as well, is to open it up to general discovery and not relevant in this case, but also to a motion to suppress because by the time you get to that next stage of summary judgment, at summary judgment, you're going to have to decide, one, what evidence is admissible, and two, you're going to have to have allowed both sides to have completed discovery to be able to put forward whatever evidence they need at summary judgment.

[00:00:53] Speaker 03:
So I hope that more directly answers the question of what I think the sequence should be in these litigations.

[00:00:58] Speaker 02:
Well, I mean, I don't know that it does, because it seems that there's still a question of, you know, if you get to discovery, what is that going to consist of, and what discretion does the district court have in sort of phasing the discovery in any particular way?

[00:01:11] Speaker 02:
And where I was going with your colleague was, why couldn't the district court have said, I want to have discovery focused on these ownership issues first?

[00:01:19] Speaker 02:
before we get to the motion to suppress because I'm reading these interrogatory responses and they raise some serious questions about how your clients happen to have all this cash on hand at the time they were stopped.

[00:01:30] Speaker 03:
Right.

[00:01:30] Speaker 03:
Well, I'm glad you asked that because I think what happens is because there is Article 3 standing, you've now moved into the merits of the case.

[00:01:39] Speaker 03:
And so this kind of touches actually on what Your Honor and what Your Honor asked about.

[00:01:44] Speaker 03:
And I think one of is why loaded on the front end is what Judge Lee said.

[00:01:49] Speaker 03:
And I believe Judge Toonheim said, what happens when the standing and the merits merge?

[00:01:54] Speaker 03:
So there's two answers to that question.

[00:01:56] Speaker 03:
There's actually a body of case law in this circuit that says when standing and the merits merge.

[00:02:02] Speaker 03:
Article 3 standing should be saved for trial.

[00:02:06] Speaker 03:
Second to that is I would direct the court's attention to the Seventh Circuit case of United States versus 239,400.

[00:02:12] Speaker 03:
That's a forfeiture case.

[00:02:16] Speaker 03:
And talking about if you load it at the front end and you say that, hey, we got to open it up to this disputed ownership, which is what I would call the merits of the case,

[00:02:30] Speaker 03:
If you open that up and do it unilaterally at the beginning of these forfeiture cases, then what's happened is you've flipped that burden of CAFRA that's saying it's the government's burden and it shouldn't be the claimant's burden.

[00:02:46] Speaker 03:
You flipped it back to the claimant having to disprove the merits before he can do anything.

[00:02:52] Speaker 03:
And what the Seventh Circuit says that I think is particularly

[00:02:56] Speaker 03:
helpful to this question is they said if you load it up on the front end it's only going to be through the grace of God that a claimant would ever get discovery because then in every single forfeiture case you're going to have the government saying I dispute standing and so that means the claimant doesn't get any pretrial motions and he never gets discovery

[00:03:16] Speaker 03:
And so that's a patent unfairness that I think CAFRA was trying to correct.

[00:03:21] Speaker 03:
And when we get to that place where we're taking, we're saying that the merits is Article 3 standing, that's when we flip it back to that unconstitutional burden of the claimant having to prove his money is not subject to forfeiture before the government has to do anything.

[00:03:38] Speaker 04:
Why shouldn't we view Rule G6 as sort of a compromise?

[00:03:46] Speaker 04:
Government can serve special interrogatories that look into standing and maybe it bleeds into the merits, but they're just interrogatories.

[00:03:52] Speaker 04:
They can't serve written discovery.

[00:03:53] Speaker 04:
Written discovery can be a lot more burdensome than just answering some questions.

[00:03:57] Speaker 04:
So maybe for regular discovery, the government could propound.

[00:04:01] Speaker 04:
many many written discovery request request for documents that's very burdensome but at this stage you're just answering some questions interrogatories because at this stage those questions are not relevant article three standing and so i think that's why

[00:04:20] Speaker 03:
this court should view it that way.

[00:04:22] Speaker 03:
You've got to view it.

[00:04:23] Speaker 03:
Does she have Article 3 standing at this stage?

[00:04:26] Speaker 03:
The answer, I think, is yes.

[00:04:29] Speaker 03:
Move on.

[00:04:29] Speaker 03:
Move on to merits discovery.

[00:04:31] Speaker 03:
Move on to motions to suppress whatever else is in the case.

[00:04:34] Speaker 01:
But the rule says that the government can issue special interrogatories regarding the relationship to the defendant property at any time.

[00:04:43] Speaker 01:
Doesn't that suggest that they can inquire further after the initial verified claim is made?

[00:04:48] Speaker 03:
Absolutely, but it can't what my position is is that you can't do that at a time when you're saying that claimant can't have his own discovery and claimant had can't do her own motions and Get answers to her own discovery

[00:05:03] Speaker 03:
That's my position is you can do that because and the reason I would say that is I think the rules of civil procedure always say that discovery has to be sort of what discovery occurs, the limit and the frequency of discovery, what occurs always has to be proportionate to what's important in the needs and the relevance of the discovery for the issues at hand.

[00:05:28] Speaker 03:
So that would be my response to that.

[00:05:30] Speaker 03:
And one last thing I wanted to squeeze in because I regret that I didn't get it in the briefs was that if you look at the advisory committee note to rule G8C, which is the section that governs motion to strike, it says paragraph C governs the procedure for determining whether a claimant has standing period.

[00:05:51] Speaker 03:
it does not address the principles that govern claim standing."

[00:05:56] Speaker 03:
And so, in other words, what that means to me is that Rule G sets out procedures, but it doesn't create its own substantive standing requirements.

[00:06:06] Speaker 03:
And so that's what I'm just ending on.

[00:06:08] Speaker 03:
I think it's very important

[00:06:11] Speaker 03:
to keep Article III standing separate from these statutory requirements.

[00:06:17] Speaker 03:
And otherwise, you get into this position, as I said, where we flipped the burden back onto the claimants when essentially Congress had determined that was unconstitutional.

[00:06:29] Speaker 04:
Great.

[00:06:29] Speaker 04:
Thank you.

[00:06:50] Speaker 00:
Rule 8A is motion to suppress.

[00:06:54] Speaker 00:
Rule G8A is motion to suppress.

[00:06:57] Speaker 00:
Rule 8G8B is the motion to dismiss.

[00:07:02] Speaker 00:
Rule G8C is the motion to strike, claim, or answer.

[00:07:07] Speaker 00:
It's all part of the same section, subsection.

[00:07:12] Speaker 00:
Number two, neither 133420 or

[00:07:24] Speaker 00:
the Coon Creek Road property, 17 Coon Creek Road property address.

[00:07:31] Speaker 00:
It discusses supplemental G6 and its purposes.

[00:07:34] Speaker 00:
But in both cases, it was not a supplemental G6 motion.

[00:07:39] Speaker 00:
It was a supplemental GC5 motion under the eight procedure for standing in Article III.

[00:07:50] Speaker 00:
That makes a big difference.

[00:07:53] Speaker 00:
because G5 clearly addresses standing.

[00:07:56] Speaker 00:
We did not, because supplemental G6 was not answered sufficiently.

[00:08:02] Speaker 00:
Proper sequence.

[00:08:04] Speaker 00:
Your Honours, rule 37 tells the judge can sequence the order in which it does.

[00:08:12] Speaker 00:
And therefore, she did, to control her docket and schedule.

[00:08:19] Speaker 00:
It was a motion for discovery

[00:08:22] Speaker 00:
That's what she did because they were not answered.

[00:08:29] Speaker 00:
As to supplemental advisory G, there's a lot of comments in there.

[00:08:34] Speaker 00:
And if you read it carefully, that is a procedure in order to be able to determine whether or not there is Article III and statutory standing.

[00:08:47] Speaker 00:
So my answer is of course the procedure is we can do a supplemental G6 interrogatories that specifically go to that issue so that then under G8 we can use any combination of that to then under the procedure litigate the issue.

[00:09:04] Speaker 00:
We never got to that part because it was a sanction.

[00:09:10] Speaker 01:
Let me ask you a slightly different question here the Supreme Court issued a civil forfeiture opinion last week with Collie versus Marshall I think it was a challenge to an Alabama Statute yes, they have any gloss on the law that would be helpful for us or not I Have read that Whitlock came out a week or two before that then Marshall I

[00:09:37] Speaker 00:
Marshall, in essence, the majority opinion was in our favor.

[00:09:42] Speaker 00:
The dissenting position of Alito said we might be re-litigating that issue because he expanded on Judge, the one who did the previous opinion, and that we might be litigating that issue again.

[00:10:00] Speaker 00:
And it was on whether civil forfeiture is constitutional, period.

[00:10:05] Speaker 00:
My simple comment on that is when the United States was created under the Constitution, they rejected criminal forfeitures and they only established civil forfeitures.

[00:10:18] Speaker 00:
And until the income tax, the tariff and smuggling and those were the income.

[00:10:25] Speaker 00:
My opinion after 35 years is we won that when

[00:10:32] Speaker 00:
I can't think of the Judge Justice arguing it last time after I think we said 20 years of litigation we prevailed.

[00:10:39] Speaker 00:
I think we will prevail again even with Judge Alito's additional language.

[00:10:42] Speaker 00:
Now, the makeup of the Court is different than 20 years ago, but we'll have to wait and see.

[00:10:47] Speaker 00:
But does it relate to this one?

[00:10:49] Speaker 00:
No, it doesn't in the sense of what we're discussing.

[00:10:54] Speaker 00:
Turning more to the other issue.

[00:10:58] Speaker 00:
The Seventh Circuit case that they decided their footnote is, I believe, misinterpreted.

[00:11:05] Speaker 00:
It did not address G6.

[00:11:08] Speaker 00:
It addressed G5.

[00:11:11] Speaker 00:
It went on and ruled against the government for G5.

[00:11:16] Speaker 00:
However, it gave an opinion that was advisory on G6.

[00:11:23] Speaker 00:
And it did say, oh, by the way, even if they did G6 properly, we still wouldn't have granted it.

[00:11:30] Speaker 00:
But that was not the litigation, that was not the briefing, that was not the schedule.

[00:11:35] Speaker 00:
So I propose to you that that is frivolous, not frivolous, it is not binding on the Seventh Circuit or your district court, or any other, because it wasn't directly the issue provided.

[00:11:48] Speaker 00:
If you carefully look at the cases in that footnote, you're gonna see the majority of them are pre,

[00:11:54] Speaker 00:
pre-cafidental opinions that are not addressing supplemental G that came into existence in 2006.

[00:12:02] Speaker 00:
And because of that, all that other citations to the other circuits of that, there are two circuits, seventh and eighth, that are different than the ninth circuit line of cases.

[00:12:14] Speaker 00:
But those are not binding, and this court should not follow it.

[00:12:19] Speaker 00:
This court should continue to follow the Ninth Circuit case law and holdings, especially the explanation of what G-6 is and why we achieve that.

[00:12:28] Speaker 00:
Again, she admitted

[00:12:32] Speaker 00:
to be a Bailey.

[00:12:33] Speaker 00:
She admitted to be a courier.

[00:12:36] Speaker 00:
She admitted the money wasn't her.

[00:12:38] Speaker 00:
She admitted, and then said she was owner.

[00:12:41] Speaker 00:
She then said, oh, by the way, on this truck, if I'm the owner of the truck, do I have to claim the money?

[00:12:46] Speaker 00:
After she said yes, and the officer said you don't have to, and she said no, then I don't claim it.

[00:12:51] Speaker 00:
Yet, when she files her claim, judicially, she says I own it.

[00:12:58] Speaker 00:
She even discussed how many trips of drugs she took to Michigan from California.

[00:13:03] Speaker 00:
She discussed how much she got paid more for transporting drugs than cash.

[00:13:12] Speaker 00:
And the cash coming back from Michigan was what?

[00:13:15] Speaker 00:
Going to buy more drugs in California.

[00:13:17] Speaker 00:
And she would be paid when she delivered it.

[00:13:20] Speaker 00:
Thank you for your time, Your Honors.

[00:13:22] Speaker 00:
Thank you.

[00:13:24] Speaker 04:
If you want one minute, Ken.

[00:13:31] Speaker 04:
Great, thank you.

[00:13:33] Speaker 04:
The case has been submitted.

[00:13:34] Speaker 04:
Again, thanks to all the council for the helpful argument.